So often in e-discovery we receive an opinion from one Court or another in which the Judge has been (properly) incensed at some shortcoming or malfeasance of an attorney or party that fire and brimstone seem to emanate from the very page. At long last, however, the opinion in Calixto v. WABO presents a case in which the Judge carefully and rather completely describes the process, proceedings, and even the contents of affidavits or declarations and testimony, so that we can get a feel for how electronic discovery can actually work in the real world. Moreover, the Court presents the case and its conclusions in a down-to-earth way that makes you actually want to practice in her courtroom.
Jorge Calixto, a Brazilian patent holder, sued WABO for damages and an injunction as a result of WABO’s alleged interference with Calixto’s contract with a third party and infringement of his patents. The dispute centered on WABO’s refusal to restore and search 30 backup tapes for material responsive to Calixto’s discovery requests.1 In response to Calixto’s motion to compel, WABO explained that it had identified all employees who might have any information relevant to the lawsuit. It instructed them to retain all their documents and exempted their ESI from the autodestruct mechanisms built into the computer system. WABO then conducted a search through all the electronic and paper documents of the people subject to the legal hold. Moreover, WABO argued, the earliest information on the backup tapes is from the same time as the information subject to the legal hold, so any production from the backup tapes would be the same information already searched and produced from “live” sources. (*13–*14.)
The Court then directed WABO to file an affidavit detailing how it had done the search, what if any ESI was deleted from WABO’s IT system and under what circumstances, and what if any options were available for recovering the deleted ESI.
WABO filed its affidavit, and it contained the following main points:
The affidavit was sworn to by WABO’s head of IT, Molly Young, who had been personally involved in gathering the information responsive to Plaintiff’s requests.
WABO first identified all employees “who had any possible contact with Plaintiff, knowledge of the [trademarks or patents involved in the litigation], or possibly had any information relating to the Lawsuit or Plaintiff[’s] document requests.”
WABO instructed these seven individuals to search their personal electronic records, including personal hard drives and computer files, and hard-copy files for any responsive information.
Young then electronically searched server house directories, shared drives, and individual files (including archives) using a list of terms selected to retrieve relevant information. The individuals were also instructed to use the same search term list on their local hard drives and Lotus Notes mailboxes.
Counsel for WABO then interviewed the individuals about where they stored their ESI.
All responsive documents were provided to counsel who either produced them or listed them on a privilege log.
Moreover, since the available live sources contained everything that might be resurrected from the backup tapes, plaintiff had already been provided everything on those tapes, and restoring them would be duplicative. Separately, WABO submitted an affidavit from a vendor that detailed how restoring the backup tapes was laborious (because of the kind of software used) and expensive, with the cost running to $40,000 before incurring the expense of relevance and privilege review.
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By: Jeffrey Reed